Fred (Migration)

[2017] AATA 472

Fred (Migration) [2017] AATA 472 (6 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Louisa Fred
Miss Rita Fred

CASE NUMBER:  1613727

DIBP REFERENCE(S):  BCC2015/1366458

MEMBER:Rieteke Chenoweth

DATE:6 March 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

·PIC 4015 for the purpose of cl.820.225 of Schedule 2 to the Regulations and

the second named applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

·PIC 4017 for the purpose of cl.820.324 of Schedule 2 to the Regulations.

Statement made on 06 March 2017 at 4:46pm

CATCHWORDS

Migration – Partner (Temporary)(Class UK) visa – Subclass 820 (Partner (Temporary)) – Biological father – Identity documents necessary to verify - Permission for dependent applicant to reside in Australia  – Adoption by stepfather

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 – cl 820.225, 820.324, PIC 4015(b), PIC 4017(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 22 August 2016 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) applied for the visa on 12 May 2015 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.225 and cl. 820.324 because the delegate was not satisfied that the applicant met PIC 4015 and PIC 4017..

4. The Tribunal made the decision on this matter on the basis of documents submitted to it.

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant can lawfully determine where her daughter, the second named visa applicant is to live, or whether the grant of the visa would be consistent with any Australian child order in force in relation to the additional applicant.

   Background

8. The applicant is a 30 year old citizen of Papua New Guinea. She first came to Australia on 1 September 2011 on a Subclass TR 676 visa. She subsequently returned to Australia on a number of visitor visas.

9. On the application form for the Subclass 820 partner visa the applicant stated that she had previously been in a relationship with Houro Peter Hohola and there was one child, Rita Fred, born 14 April 2008  conceived during the relationship. On her application form she stated” Conceived a child from a short term relationship. Father has not had anything to do with me or the child since birth.”

10. At the time of the application for the visa the applicant provided a statutory declaration by the father of the child, is evidence that she met Public Interest Criterion (PI C) 4015 in relation to the dependent applicant. The delegate considered that the statutory declaration was insufficient for the purposes of determining custody and requested that she provide documentary evidence such as a court order that she had the sole parental responsibility for the child and the right to determine where she can live.

11. On 15 June 2016 the applicant submitted a response. She stated “please see enclosed completed form 1229 from Houro Peter biological father of Rita Fred. Houro Peter has given permission for Rita Fred to migrate to Australia permanently. Houro Peter does not have any passport, driver’s license, birth certificate or any other form of ID to provide with the form 1229 as he lives in a settlement (village) in PNG and has no need for any of these. Houro Peter has never taken any interest or taken any care of Rita Fred and now has his own family (refer to previous to submitted Statutory Declaration dated and witnessed by Boroka Magistrates Court, Port Moresby, 04/03/2014). To obtain the form 1229, Louisa’s uncle travelled to his settlement area to get him to sign this. Rita has been in Australia since 5 April 2015, Houro Peter has never sought to contact Rita or provide any support since her birth.”

12. The delegate considered that without an accompanying identity document with a signature (e.g. a passport or a driver’s license) of the declarant, a form 1229 did not constitute evidence of a valid consent to grant a visa to a child less than 18 years of age because they were unable to verify the signature of the person making the declaration.

13. With the application for the visa the applicant wanted a copy of the Certificate of The Entry for her daughter, Rita Fred showing the date of birth is 14 April 2008. The details of the mother are provided as, Louisa Fred. There are no details of the father on the certificate.

14. The requirements of PIC 4015 and PIC 4017 are as follows:

    4015

    The Minister is satisfied of 1 of the following:

    (a)      the law of the additional applicant’s home country permits the removal of the additional applicant;

    (b)      each person who can lawfully determine where the additional applicant is to live consents to the grant of the visa;

    (c      the grant of the visa would be consistent with any Australian child order in force in relation to the additional applicant.

    4017

15. The Minister is satisfied of 1 of the following:

    (a)      the law of the applicant’s home country permits the removal of the applicant;

    (b)      each person who can lawfully determine where the applicant is to live consents to the grant of the visa;

    (c)      the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

16. With the application review the applicant provided a further statutory declaration by Peter Nohoro, dated 22 December 2016. The statutory declaration contains a photograph of the declarant. The statutory declaration states:

    ·I am the biological father of “Rita” Fred.

    ·Rita is the biological daughter of Louisa Fred who was born on 14^th April, 2008 at Port Moresby General Hospital.

    ·Rita Fred is currently staying with her biological mother Louisa Fred and stepfather namely Brian Martin in Cairns, North Queensland in Australia. As the biological father of Rita I hereby fully and wholeheartedly agree for Rita to be educated in Australia and stay with her biological mother – Louisa who is now married to an Australian.

    ·I have not been supporting Louisa and the child (Rita Fred) until she met Brian Martin in 2010 and got married. I will assist also in seeking assistance from Office of The Director of Lukautim Pikikini (Child Welfare) to arrange Legal Adoption papers for Rita Fred to biological mother Louisa Fred and step father Brian Martin.

    ·Rita Fred is happy with the biological mother and stepfather and legal adoption will be the only way for her to become an Australian citizen and also attend school in Australia.

    ·Attached is a photo of myself making this declaration.

17. The document is signed by the declarant and stamped and signed by the Commissioner for Oaths, District Court, Waiga, Papua New Guinea.

18. For the following reasons the Tribunal has concluded that the matter should be remitted for reconsideration.

19. The applicant has provided the Tribunal with a statutory declaration which has been sworn before the Commissioner for oaths in Papua New Guinea District Court, Waiga. The Tribunal notes that on the application for the visa the applicant stated that Peter Nohoro, is the father of her child, Rita Fred. It notes that the father’s name has not been provided on the child’s birth certificate. On the basis of the applicant’s evidence with the application for the visa and the statutory declaration from the father of the child on the Department file as well as the statutory declaration submitted to the Tribunal, the Tribunal is satisfied that he is the biological father of the child. On the basis of the statutory declaration dated 22 December 2016, the Tribunal is satisfied that Peter Nohoro, the father of the child, Rita Fred, has consented to the grant of the visa.

20. The Tribunal is satisfied that each person who can lawfully determine where the additional applicant is to live consents to the grant of the visa. The applicant presently has the child living with her in Australia. Accordingly, the Tribunal is satisfied the requirements of PIC 4015(b) and PIC 4017(b) are met.

21. Given the findings set out above, the appropriate course is to the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

22. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

    ·PIC 4015 for the purpose of cl. 820.225 of Schedule 2 to the Regulations and

    the second named applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

    ·PIC 4017 for the purpose of cl.820.324 of Schedule 2 to the Regulations.

    Rieteke Chenoweth
    Member